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On Ethical Governance of Administrative Discretion

Author: HongXingWen
Tutor: LiJianHua
School: Central South University
Course: Philosophy
Keywords: administrative discretion option individual justice ethical principal ethical governance
CLC: D035
Type: PhD thesis
Year: 2012
Downloads: 648
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Administrative discretion as a administrative power of administrative subjects to judge, choose and decide within the range of the authorization of laws, whose exertion process will inevitably include humanity, value and moral orientation and etc. of the executants, is actually a kind of "rule of man" authorized by "rule of law". It can be perceived as a kind of ethical discretion, due to its ethical feature of freedom, selectivity, relativity and dictatorship. Since administrative discretion is featured by "rule of man" and prerogative, the law has been both accept and restrict it since its existence. It is far from enough to discuss the restriction of administrative discretion only from the view of administrative law and politics, it should be concerned by ethics and governed by ethical dimension, which is determined by its ethical feature and legal blind spot of discretionary space.The validity of the existence of administrative discretion is the premise of ethical governance research on it. Existence served as base for governance. Human society choose law to govern the weakness of human, while the law executants also bear the human weakness. So how to recognize and solve the problem of "antinomies"? Rational explanation will be procured by from premise of "good and evil" humanity. In addition, proper administrative discretion not only satisfied modern service administration, reflecting the appealing for value on justice and order, but also overcome the intrinsic weakness of rule of law and consummates the rule of law, which makes the existence valid.As an ethical discretionary power, the exertion process of administrative discretion is not so much as a process of adopting a measure, manner and progress to deal with complicated administrative affairs under the framework of laws and regulations as a moral choice process of executants based on a kind of faith and value pursuance, which would definitely concern the analysis and consideration of relevant factors affecting moral choice, such as moral ability, administrative belief and occasions of exercising power, and further to explore the possible ethical dilemma and risks during the exertion process of administrative discretion.Rightfully existing administrative discretion does not necessarily mean it can be exercised rightfully. It is restricted in moral boundary and restrained by ethics. To ensure administrative discretion realizes individual justice and substantive justice among various value confrontation, ethic confrontation and possible ethical risks, the support and restrain of ethic is obviously indispensable, which requires the exertion of administrative discretion to follow the ethical principle of justice, rationality, honesty, moderation and responsibility. Through the construction of ethical principle, and forming a concerted efforts with the rule of law to govern the administrative discretion, the rightful exertion of administrative discretion within clear legal framework and moral boundary will be ensured.Ethical rectification must be conducted on the injustice caused by alienation of administrative discretion must. In view of the inherent dilatancy, self-decay and the impurity of power exertion environment, the exertion of administrative discretion will inevitably encounter injustice such as extension, alienation and even dictatorship, autocracy and tyranny. How to rectify? Based on the analysis of existing features and limitations of judicial rectification, ethical rectification and governance on injustice of administrative discretion are conducted through mechanism and route of moral cultivation, legal responsibility and remedy, system improvement and justice environment.

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CLC: > Political, legal > Political Theory > Theory of the State > State administration
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